Opinion
No. 37291.
December 31, 1949.
1. Trial — evidence — witnesses — decree pro confesso — inferences.
When a party permits a decree pro confesso to be taken against her, the inference may be drawn, on the hearing, that had she testified as a witness she would not have contradicted the allegations of the bill which because of her failure to plead she had, in point of law, admitted.
2. Alteration of instruments — deeds — name of one of the two grantees deleted — effect of.
When a delivered deed naming two parties as grantees is altered by the deletion of the name of one of them, the title and ownership by his one-half undivided interest is not thereby affected.
3. Alteration of instruments — vendor and purchaser — recorded land — bona fides.
Although an altered deed as recorded shows only a single grantee instead of the two who were the actual grantees a purchaser in good faith from the record owner will obtain title only to the half-interest actually owned by him: A purchaser under what amounts to a forgery is not given the preferred position of an innocent purchaser for value.
4. Equity — trial — finding of facts.
When it is apparent that the chancellor has found against the overwhelming weight of the evidence and was therefore manifestly wrong, the finding will be reversed.
Headnotes as approved by McGehee, C.J.
On Suggestion of Error.5. Equity — equitable lien — alteration of instruments — requiring equity to be done.
In a deed to husband and wife as tenants in common the grantees expressly assumed the payment of a specified debt secured by a lien on the property; the deed was subsequently altered before recordation so as to show the wife as the sole grantee, and from her a third person not knowing of the alteration purchased the property and paid off the assumed debt: Held that in adjudicating the husband to be the owner of the half-interest conveyed to him, unaffected by the alteration, his said interest would be charged with an equitable lien to secure the payment of his half of the assumed debt.
Headnote as approved by Roberds, J.
APPEAL from the chancery court of Lowndes County; A.F. McKEIGNEY, Chancellor.
Sams Jolly, for appellant.
The lower court was in error in dismissing the original bill of complaint against the defendant, Mrs. G.N. (Kitty Lorene) Prater. It is submitted that on the charge of fraud against the defendant, Mrs. Prater, the charge was sufficient to warrant a decree against her in the absence of any proof on her part. In the last sentence of Section 260 of Griffith's Chancery Practice we find the following language: "Upon a decree pro confesso all the facts sufficiently stated to be true, as facts, are to be taken as true to the same extent as if established by the evidence against the denial of the defendant; but the complainant can have only such relief as the facts charged in the bill entitle him to receive, in the judgment of the court; for it is well settled that if complainant states an insufficient case in his bill he cannot have relief although he establishes a good case by his evidence."
The lower court was in error in dismissing the original bill of complaint against all of the defendants. At this juncture we will briefly review the evidence offered on behalf of the complainant, (and this review followed).
Section 176 of Mississippi Chancery Practice sets out how fraud must be charged, and it is respectfully submitted that complainant's original bill met all the requirements set out by Judge Griffith in the charge of fraud. In Section 589 of Judge Griffith's book near the bottom of page 657 we find the following language: "On the other hand, however, it must not be overlooked that fraud arises by presumption from certain states of facts, when shown to exist, in cases: (1) of confidential relations." It is here respectfully submitted that a confidential relationship did exist between the complainant Prater and his wife, and that when viewed with all the other circumstances in this case the presumption of fraud on the part of Mrs. Prater is very strong, and could only be overthrown by direct evidence by her.
It is respectfully submitted that defendants have been convicted of crime on circumstantial evidence not nearly so strong as that offered in this case. In the case of James v. State, 45 Miss. 572, 2 Mor. St. Cas. 1741, decided by this court in 1871, we find the following in the syllabus by the court: "1. In criminal cases the evidence, as a whole, must be such as to produce a moral certainty of guilt, and to exclude any other reasonable hypothesis." We submit that the proof in the case at bar meets this test. Also see Nalls v. State, 128 Miss. 277, 90 So. 892, and authorities there cited.
Daniel, McKee McDowell, for appellees.
The first error assigned by the appellant is "The lower court was in error in dismissing the original bill of complaint against the defendant, Mrs. G.N. (Kitty Lorene) Prater." Reference is made to the case of Kennedy et al. v. East Union Lumber Mfg. Co., 92 Miss. 405, 46 So. 625, which is cited by Judge Griffith in his Chancery Practice, page 264 at paragraph 263, in which the court said: "It is not every case where the defendant suffers a pro confesso to be taken that will warrant a final judgment. A final judgment can never be taken where there are other codefendants making defense to the bill of complaint, and in making their proof they also disprove liability on the part of their codefendants not answering. In such case no judgment should be taken against the defaulting defendant. This is the uniform chancery practice followed in this state and elsewhere. In the case of Simpson v. Smith Sons Co., 75 Miss. 505, 22 So. 805, the Court said: `Notwithstanding the decree pro confesso, the final decree, and the failure of appellant to appear in the court below, if, on the whole case as presented here, it appears that the appellee was not entitled to relief, the decree must be set aside.' Minor v. Steward, 2 How. 912; Kelly v. Brooks, 57 Miss. 225: Hargrove v. Martin, 6 Smedes and M. 61; Soria v. Stowe, 66 Miss. 615, 6 So. 317."
From the above quotation it appears that the law of Mississippi in chancery practice with reference to decrees pro confesso, is clear that if the case when presented does not warrant a judgment against the defaulting defendant, then the decree pro confesso will be set aside.
Appellant's second assignment of error is based upon the evidence as presented to the court. The appellant cites the testimony of four of his witnesses, Mr. John N. Layer, the appellant Mr. Prater, W.L. Sims, and D.E. Woolbright. Of these four witnesses, only two, according to their testimony saw the deed after its execution. In the case of Scott, et al. v. Perry, et al., 140 Miss. 452, 106 So. 12, the court held as follows: "Except in the case of negotiable paper, which is recognized in this state as an exception to the rule, the general presumption is in favor of honesty and fair dealing in all transactions and against the imputation of fraud, and one who assails a deed on account of erasures or interlineations therein has the burden of showing that the erasures or interlineations were made after the execution of the deed. Commercial Railroad Bank v. Lum, 7 How. 420;" and numerous cases cited.
The evidence to support a charge of fraud must be clear and convincing and more convincing than a mere preponderance of the evidence, as shown by the cases of Martin v. Gill, 182 Miss. 810, 181 So. 849; New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426, and many other cases. It is insisted by the appellees that the appellant has not met the burden of proof placed upon him.
The appellant, Gilbert Neal Prater, filed his original bill in the Chancery Court of Lowndes County against Mrs. G.N. Prater, formerly his wife, seeking to cancel a deed executed by his former wife, Mrs. Prater, to Mrs. Mary E. Stribling, a deed from Mrs. Mary E. Stribling to Harwell D. Allen, and a deed of trust from Harwell D. Allen to the First Columbus National Bank, all of whom were parties defendant to the bill, and which instruments sought to be cancelled were exhibited with the bill. There was a decree in the lower court dismissing the bill and Gilbert Neal Prater appealed.
The facts in the case are as follows:
John N. Layer was the owner of a house and lot in Columbus that D.E. Woolbright, a real estate agent, had arranged a sale for to Gilbert Neal Prater and his wife, Mrs. G.N. Prater, and Woolbright went to the office of W.L. Sims, an attorney of Columbus, Mississippi, and had him prepare a deed from Mr. and Mrs. Layer to Prater and wife, naming both of them in the deed as grantees. Mr. Sims prepared the deed according to instructions given by Mr. Woolbright and delivered the prepared form of the deed to Mr. Woolbright, who turned it over to the parties for execution. Mr. John N. Layer testified that at the time the deed was executed it contained the names of both Mr. and Mrs. Prater therein as grantees, and Mr. Prater testified to the same effect. The deed was then delivered to Mr. Prater, who turned it over to his wife who put it in her purse. The deed was not placed of record. Mr. and Mrs. Prater then moved into the house on August 15, 1945, and resided therein as a homestead until September 21, of the same year, when family difficulties arose and Prater left and went to Santa Maria, California. Upon Prater's departure Mrs. Prater filed a suit for divorce in the Chancery Court of Lowndes County, but this was not followed up by her. Later, desiring to sell the property, she approached Mrs. Mary E. Stribling and undertook to make a sale. Mrs. Stribling advised her she would look at the public records and after doing so learned that the deed had not been placed of record. She reported back to Mrs. Prater that the title still appeared of record in John N. Layer and Mrs. Prater explained that when her husband left her she had returned to her people in Vernon, Alabama, and that the deed had been lost. Mrs. Prater was contending that she had been named as the sole grantee in the deed. It was then undertaken to procure another deed from Mr. and Mrs. Layer naming Mrs. Prater as the sole grantee. But according to Mr. Layer's testimony, it was represented to him that the deed he had given to Mr. and Mrs. Prater was incorrect and that they wanted a new deed naming Mrs. Prater as sole grantee, which he declined to execute. On failing to procure a new deed from Mr. and Mrs. Layer, Mrs. Prater then went to Vernon, Alabama, and a few days later returned with a deed which she showed to Mrs. Stribling and which Mrs. Stribling testified was regular on its face and named Mrs. Prater as the sole grantee. The bill charges that Mrs. Prater either deleted Mr. Prater's name from the deed or forged another deed with Mrs. Prater named as the sole grantee. Mrs. Stribling then purchased the property from Mrs. Prater, and Mrs. Prater executed a deed in accordance with this transaction. Thereupon Mrs. Stribling and Mrs. Prater went to the Chancery Clerk's office together and there deposited the respective deeds, each paying their own recording fee. Mrs. Prater then left Columbus. Shortly thereafter, in February of 1946, Mr. Prater returned to Columbus, finding that the bill for divorce had been filed against him he filed an answer and cross-bill in the same suit and was awarded a divorce from his wife on his cross-bill. Learning of the sale of the property by Mrs. Prater, he thereupon filed this suit. The original of the Layer deed was not produced at the trial.
We are convinced by the testimony in this record that John N. Layer and wife executed a deed to the property to both Neal Prater and Kitty Prater, his wife, and that both of said parties were named as grantees in said deed and that said deed was delivered to Prater. This is supported by the testimony of John N. Layer, the testimony of Neal Prater, and the undisputed physical fact that the deed placed of record naming Mrs. Prater as grantee also refers to the grantees in the plural in six different places in the deed. In addition, Mr. Layer testified that at the time of the conference in which it was sought to obtain from him a substitute deed, it was stated to him that the deed he had executed to both Prater and his wife was incorrect and that it was sought to correct this mistake in his former deed. In addition he testified that he was later offered $50 to execute such a deed, which he declined to do.
(Hn 1) Mrs. Prater did not testify in this suit, but permitted a decree pro confesso to be taken against her. From this it may be legally inferred that had she testified, her testimony would not have contradicted that of the complainant, because the result of her failure to plead is in law an admission of the allegations of the bill.
We are further convinced from the evidence in this record that someone deleted the name of Gilbert Neal Prater as a grantee in the deed from Mr. and Mrs. John N. Prater.
(Hn 2) When the deed was delivered by John N. Layer to Neal Prater and Kitty Prater, this delivery operated to vest in Neal Prater and in Kitty Prater each an undivided one-half interest in the property. When Mrs. Kitty Prater, or whoever else that might have performed the deletion, deleted the name of Neal Prater from the deed this did not operate in any wise to increase the interest of Kitty Prater in the property, for Neal Prater's interest had vested and could pass to Kitty Prater only by instrument of writing. Consequently, when Mrs. Kitty Prater executed the deed to Mrs. Stribling, it was not effective to convey any larger interest in the property than Mrs. Prater owned, and consequently conveyed to Mrs. Stribling only the undivided one-half interest in the property which had been vested in Mrs. Prater by the deed from John N. Layer.
(Hn 3) An altered instrument does not operate to pass title, and when Mrs. Stribling purchased on the faith of the public records she does not occupy the position of an innocent purchaser for value as to the interest of Neal Prater. 2 Am. Jur. p. 619 Sec. 31. This is true for two reasons, one reason is that the title as to his one-half interest has never passed out of Neal Prater by instrument of writing required by the statute of frauds, and secondly, a purchaser under a forgery is not exalted by law into the preferred position of innocent purchaser for value, and a thief can give no title. Consequently, Mrs. Stribling was vested with an undivided one-half interest in the property by the deed from Mrs. Prater. The deed from Mrs. Stribling to Harwell D. Allen vested in him the undivided one-half interest owned by Mrs. Stribling, and the deed of trust to the First Columbus National Bank executed by Harwell D. Allen is effective to bind only the undivided one-half interest Allen received in the deed from Mrs. Stribling.
There was a prayer for general relief in the bill of complaint. The finding of the Chancellor was contrary to the overwhelming weight of the evidence. (Hn 4) While we hesitate to overthrow the ruling of the Chancellor on a finding of fact, nevertheless we in such cases sit here as Chancellors and are bound by the same duties as control the Chancellors in the courts below, and when it is apparent that the Chancellor has found against the overwhelming weight of the evidence and is manifestly wrong in his finding, this Court will reverse the finding of the Chancellor and this we must do here.
It is our judgment that Gilbert Neal Prater is now vested with an undivided one-half interest in the property and that Harwell D. Allen is vested with the undivided one-half interest formerly owned by Mrs. Gilbert Neal Prater and that the Bank's deed of trust is a lien only upon the interest of the said Allen.
Accordingly, the decree of the lower court will be reversed and decree will be entered here in accordance with this opinion.
Reversed and rendered.
ON SUGGESTION OF ERROR In Banc. February 27, 1950. ( 44 So.2d 538)
It is suggested, among other things, that Mrs. Stribling should have been granted an equitable lien upon the one-half interest of Prater in the property in question to secure to her the payment of one-half the amount she paid the First National Bank of Columbus, such one-half being $242.00. (Hn 5) We think the contention is well taken. The debt to the Bank was assumed by grantees in the deed to Mr. and Mrs. Prater, and it is only equitable and just that the one-half interest of Prater in the property be charged with an equitable lien to secure one-half of the amount assumed. That will be done and the decree heretofore entered will be modified accordingly.
It is suggested that the cause should be reversed for adjustment of taxes, improvements, rents, etc., as between Allen and Prater. No such questions are presented by the pleadings in this cause. However, neither the opinion rendered, nor the decree entered, herein shall be construed as adjudicating, or foreclosing, these questions. They are left open.
Suggestion of error is overruled in part and sustained in part.